The second element that must be proven in a disabilities discrimination case is that the plaintiff is “otherwise qualified” for the position she seeks or attempts to remain in. For purposes of the ADA, this does not mean that the individual must be able to perform any duties for the position in question that the employer might establish. The ADA forces employers to make it easier for disabled persons to qualify for a position by allowing employers to require applicants or employees to be able to perform the essential functions of a position.
The essential functions of a position are those functions that are fundamental, rather than marginal or unnecessary, to the fulfillment of the objectives of the position. On a practical level, it is often difficult to determine whether some functions that an employer desires to include in the job duties for a position are essential or not.
Generally speaking, courts would look to any documentation from the employer, including: (1) employer’s judgment regarding the essential nature of the specific task/requirement; (2) any written job descriptions or advertising/postings; (3) the amount of time spent performing the function; (4) the consequences to the employer of not requiring the individual to perform the function; (5) the actual work experience of others in the same job; and (6) how common the requirement is in the same position with other employers.
The fact that an employer has a job description detailing the essential functions of a position does not bind a court to agree with the employer that a listed essential function is in fact essential. However, if the employer has developed a written job description making a reasonable, good-faith effort to list essential functions of a position before an interested applicant with a disability claims that a listed essential function that disqualifies her is not in fact essential, courts have often given a good deal of deference to the employer’s judgment. As discussed below, courts have uniformly held that attendance can be an essential function of a position. See two cases discussed in the text: Pickens v. Soo Line Railroad and Mason v. Avaya Communications.
Individuals posing a Direct Threat to health and safety are not considered otherwise qualified.
In determining whether an individual is otherwise qualified, an employer may take into consideration any direct threat the individual poses to the health and safety of other workers or customers. For example, individuals who have made a direct and credible threat of violence are not considered otherwise qualified. Cases, such as Arline, involving individuals with transmissible diseases are somewhat more complex. In such cases, courts will analyze the nature, duration, and severity of the transmission risk as well as the probability that the disease will be transmitted and varying degrees of harm it may cause.
Finally, it is important for employers to understand that they cannot disqualify disabled applicants or employees for a position based on a belief or even well-founded expectation that due to a disability such an applicant or employee will be unable to perform one or more essential functions of the position in the future. For example, an employer cannot disqualify an employee with a back problem from a promotion to a position involving additional heavy lifting, based on an expectation that this will worsen the back problem and cause the employee to be unable to work in the future, if the employee can do the lifting now. A possible exception could arise if the employer was able to have the employee examined by a physician, and the physician indicated that the employee is not presently qualified to perform the lifting job because, with some degree of medical certainty, it would result in the employee causing physical harm to himself.